COURT: On 6 November 2023, defendant, you pleaded guilty to one charge of trafficking in a dangerous drug before a magistrate at the Eastern Magistracy. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.
You admitted that on 27 August 2022, at the Customs Arrival Hall B, Passenger Terminal Building, Hong Kong International Airport, Chek Lap Kok, you unlawfully trafficked in a dangerous drug, namely, 1 kilogramme of a solid containing 841 grammes of cocaine. You admitted the Summary of Facts of this case dated 20 October 2023.
The Facts
At about 1307 on 27 August 2022, you arrived in Hong Kong from Cape Town, South Africa via Singapore. A customs officer intercepted you at the customs clearance of the “nothing to declare”, otherwise known as the green channel at the Customs Arrival Hall B. No irregularities were found after your baggage was examined.
Another customs officer then conducted a body search on you. After removing the three pairs of leggings that you were wearing, a black packet containing the drugs quantified in the charge was found concealed between your thighs. Upon inquiries, you admitted the packet contained drugs, although you did not know what type. You said they were placed there and given to you by a lady in Johannesburg called “Pinky”. You said after completing hotel quarantine in Hong Kong, someone would collect the drugs from you. Your reward for bringing the drugs to Hong Kong would have been Rand 25,000, which according to both the prosecution and the defence is approximately $11,000 or $10,800. You will receive this money once you returned to South Africa.
In a preliminary interview conducted with you later, you said that Pinky had introduced the boss to you, who was a drug dealer. Two mobile phones were seized from you. There were some suspicious call records with contacts of the name “Bossssss”, that is B-O-S-S-S-S, and “Boss Q” and “Pinky”. You had boarded the flight from Cape Town on 26 August 2022 and your return to South Africa departing Hong Kong was to be on 6 September 2022.
Representatives at the Eco Tree Hotel in Causeway Bay confirmed you had a booking at their hotel with a period from 27 August to 30 August 2022. The estimated street value of the cocaine seized from you was HK$863,000.
I turn now to your background. Defendant, you were born in South Africa. You are now 37 years of age. You have completed your high school education in South Africa. You have a husband by customary marriage, but it was never a registered legal marriage. You have two children aged 13 and 5.
In this case, defendant, Ms Elizabeth Herbert, your counsel, has informed me of the disastrous series of events which led you to traffic in these drugs in Hong Kong. In summary, they were that in 2019 you had opened a fast food shop. Unfortunately, in 2020, your shop was looted and arson was committed and the whole premises was set fire to. Everything was destroyed and you and your family were left destitute. You attempted to obtain compensation but were told this would take time. Of course, at the time of your arrest, you still had not been compensated.
Moreover, in April 2021, there was a flood in Inanda where you resided. You lost your home and your sister died in the flood. Your family then moved into a shelter set up by the local government home, then into a temporary shelter home, which consisted of one room for the whole family to share. Unfortunately, your relationship with your husband was strained, deteriorated and he beat you up to which you were hospitalised for five days as a result. As a result of all the above, you were desperate to provide for your family and to find a way to leave your husband.
Against this background, you came to know this lady called “Pinky” who used to be a customer at your fast food shop. Pinky claimed to be sympathetic to your situation. Pinky then told you that you would travel together to Johannesburg and that Pinky could help you find work. Once in Johannesburg, you went to stay at a guesthouse and Pinky introduced you to a man known as “Bishop”.
Pinky and Bishop said they could help you and gave you money to send to your family. They also promised you additional funds on your return to Hong Kong but explained that you must traffic drugs to Hong Kong. You were reluctant but agreed as you could see no way out. They made arrangements for your passport and trip to Hong Kong and took you to the airport. You were told that you would fly alone to Hong Kong and a man would come and collect the drugs from you once you arrived in Hong Kong. You were not given any details concerning this man but was told that he would locate you after you completed your quarantine.
In February 2023, you received news that your husband was murdered whilst you were incarcerated in Hong Kong. I am told now by Ms Herbert that your children are now looked after by your sister.
You have also written a letter to this court dated 11 June to which I have read the contents. I can say briefly that in view of your desperation and misery you have explained that you were driven to commit this offence. You are very remorseful for your misdeeds and you are making good use whilst you are confined and finishing off two Chinese University courses in English as well as business management. You are a person of no previous convictions and are of clear record.
I turn to sentence. The sentence approach to sentencing for drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. In applying the principles and the six steps are as follows.
The first step is to assess the gravity of the offence by identifying the relevant guideline band applicable to the quantity of drugs concerned. The drugs in this case are that of cocaine. The tariff case for the drug heroine and cocaine are laid out in Lau Tak Ming [1990] 2 HKLR 370. But in these large amounts, the relevant tariff is set out in the case authority of Abdallah [2009] 2 HKLRD 437.
Pursuant to the tariff, where an amount trafficked is between 600 to 1,200 grammes, the Court of Appeal decided that the starting point should be between 20 years to 23 years’ imprisonment. The amount trafficked in this case is at 841 grammes of cocaine and by itself would arithmetically speaking attract a starting point of 21 years and 3 months’ imprisonment.
The second step is to assess the role and culpability of the defendant based on the evidence. Defendant in this case you were clearly a courier bringing drugs into Hong Kong from South Africa, intending to pass them on to another person.
The third step is to identify where in the relevant band the defendant comes. Taking into account the third band, your role was as a courier of these drugs and importing them into Hong Kong, which is generally referred to as being an international element involved in this case.
The reason for you being involved in this case has clearly been set out because of your desperation to provide for your family and to rid yourself of the very poor circumstances that you were in. The case of HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, decided after Lee Ming Ho, sets out the principles to be applied when deciding on the enhancement regarding the international element.
In your case, defendant, you were a foreigner arriving in Hong Kong for the first time from an impoverished country with consignment of drugs. I believe you fully appreciated the enormity of what you were doing as you knew full well from the moment you were given these drugs of this packet as it was strapped to your thighs that you were going to be trafficking a consignment of drugs across the world to Hong Kong so that someone in Hong Kong would collect it from you. I have no doubt that you would have understood the risks that you were taking when you brought these drugs across the world strapped or attached to your thighs that if you were caught whilst on your journey, there would be serious consequences.
In those circumstances, I believe that an enhancement of your sentence from the original arithmetical starting point should be applied. In those circumstances, I would enhance the sentence to a starting point of 22 years and 3 months’ imprisonment.
Turning to the mitigating factors, Ms Elizabeth Herbert asked this court to take into account the defendant’s involvement in Father John Wotherspoon’s, I will refer to him as Father John, campaign against drugs. The defendant has contributed to the campaign by sharing her story on the board for prisoners website as well as Father John’s own anti-drug website. It is requested that a reduction in sentence be granted.
As the Court of Appeal has said in its judgments in HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249 and HKSAR v Akinyi Grace Sylvia, CACC 324/2015, assessing the value, if any, to Hong Kong of an applicant’s participation in Father Wotherspoon’s programme is a matter that the executive is better equipped to perform to which I shall do.
The accounts the defendant has given as to the reason for her involvement in trafficking drugs is as often the case from these countries a very sorry one. Although I sympathise with the defendant’s predicament which has caused her to traffic in these dangerous drugs, in this particular branch of sentencing, personal circumstances would generally count for little.
The defendant, as I mentioned, knew full well that her role was to bring drugs into Hong Kong. As stated by the Court of Appeal in paragraph 75(74?) in Lee Ming Ho:
“Importing drugs into Hong Kong fuels the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong.”
The most significant mitigating factor in this case is the defendant’s plea of guilty at the earliest opportunity and for that the defendant will benefit from a one-third discount to her sentence.
The notional starting point being that of 22 years and 3 months’ imprisonment had you been convicted after trial will be reduced to one of 14 years and 10 months to which you shall serve.
As regards to the sixth step, I consider that this sentence is fair, just and balanced in all the circumstances of this offence and the offender.